it “permits the public to discuss and put forward opinions and
criticisms of court practices and proceedings”. Here, the court
implied that court practices and proceedings are a matter of
public interest. The importance of the practices and procedures
of the justice system in a liberal and democratic society is a matter of public interest that does not require further explanation.
Court practices and proceedings being matters of public interest
is also reflected in the fact that the justice system is a publicly
funded institution. In Canada, abortions are publicly funded,
at least in part, and this speaks to why abortions are a matter
of public interest.

[33] Where the claimant can show that the denial of access
effectively precludes meaningful commentary, there is a prima
facie case for the production of the documents in question. However, the claim for access can still be defeated if there are countervailing considerations inconsistent with production such as
issues of privilege or if the production of the documents would
interfere with the proper functioning of the governmental institution in question: see Criminal Lawyers’ Assn., at paras. 32 and
33. In the absence of countervailing considerations inconsistent
with production, the right to access is made out and the analysis
moves on to s. 1 of the Charter.

( i) Section 65(5.7) of the Freedom of Information and
Protection of Privacy Act

[34] The impugned s. 65(5.7) is included in Part V — General
of FIPPA and is found within s. 65, which is the section titled
“Application of Act”. This section includes other exclusions such
as notes prepared by judges, adoption records and ecclesiastical
records.

[35] Section 65(5.7) reads as follows:

65(5.7) This Act does not apply to records relating to the provision of abortion services.

[36] As noted by the intervenor, there is no criteria which
applies to the records relating to the provision of abortion services. There is no qualifier for records which contain identifying
information or any other similar criteria for allowing the disclosure of certain records. The exclusion is absolute. It is a broad
brushed exclusion which does not leave the door open for any
exceptions. The intervenor suggests that the exclusion in s. 65(5.7)
appears to cover information fitting in the following categories:
(1) statistical information; (2) funding; and (3) facilities and staff
that perform abortions. I agree.